Wednesday, 29 September 2021

EA turns blind eye to AI’s BELOW the water table plans, but DCC still in no position to determine Straitgate application lawfully

Oh, how lucky Aggregate industries is to have the Environment Agency do its bidding. What, you may ask, has the company done to deserve such special hand-holding? It can’t be down to providing cogent environmental arguments, so what can it be? 

Of course, any idea that the Environment Agency might want to protect groundwater went out the window a long time ago when multiple warnings from a renowned Professor in Hydrogeology were flatly ignored. The Agency is obviously far more concerned about securing a diminished sand and gravel resource for Aggregate Industries, than it is about protecting the aquifer that supplies drinking water to so many homes and businesses. 

It will therefore come as no surprise that the Environment Agency has decided to turn a blind eye to another aspect of the planning application for Straitgate Farm that doesn’t work. 

We have posted – here and here – about the problems in the proposed soil storage areas. In these areas, Aggregate industries would need to dig down and remove topsoil and subsoils to expose the overburden layer, upon which – for like-on-like storage – other overburden soils from the rest of the site could be stored. This would be required to restore the best and most versatile agricultural land in the future. The problem? In these areas, the groundwater is very close to the surface, so close that seepages and springs occur. In other words, in these areas Aggregate Industries would need to dig BELOW the maximum water table. 

But it’s not just in the soil storage areas where this is a problem – it’s the loading area too, the central hub of any quarry. If the water table rises above the elevation of the loading area, all manner of problems could result, not just flooding. 


The implications of this have not been assessed. Aggregate Industries’ Environmental Statement is silent on the matter. Groundwater levels have not been monitored in the areas where overburden would be stored and where the loading area would operate – despite the clear evidence of elevated levels. 

Devon County Council needs to have all the necessary and relevant information to enable it to determine the application and reach a lawful decision: 
But, you ask, wasn’t the site only meant to be worked dry? Weren’t there arguments at the Minerals Plan Examination about that? Didn’t the Public Inspector get involved? Wasn’t the Environment Agency pushing for all quarrying to stop 1m above the water table? 

Aggregate Industries have proposed to stop quarrying a metre above the water-table. We expect DCC to make this a condition of any permission that is granted. 
Devon County Council put a line through that 1m during the Examination. The Inspector commented: 
The Inspector's suggestion was intended to reflect the on-going uncertainty about what could be an acceptable way of working the site. An unsaturated zone of 1m may or may not feature in the final solution. However, it could be seen as inappropriate for Table C.4 to commit to a definite method of working when potentially acceptable alternatives have not been determined. The important points are that (a) only dry working would be acceptable… 
Only dry working would be acceptable. This is how the Minerals Plan was modified:


The Inspector's Report said: 
74. Provided that dry working takes place, as is proposed, I see no reason why water supplies would be materially affected. An acceptable solution would be determined in discussions involving the Environment Agency, as stated in Table C.4 
Provided that dry working takes place. This is what the Minerals Plan says today: 
5.4.9  Policy M12 therefore provides for the supply of sand and gravel through a Preferred Area at Straitgate Farm, near Ottery St Mary, subject to extraction being limited to dry working above the maximum water table to avoid potentially adverse impacts on private water supplies and water-sensitive habitats. 
Limited to dry working. The Environment Agency’s most recent stated position says: 
Our position remains that we consider this proposal can only be acceptable if subsequent permission includes conditions and obligations to protect the water environment…. we advise that the following must be secured on any planning permission: 1. No working shall be undertaken below the ‘Maximum Winter Water Table (MWWT) grid’. 
The man on the Clapham omnibus would take that to mean no digging below the maximum water table across the proposed site as set out at the top of the Environment Agency’s letter:
EXTRACTION OF UP TO 1.5 MILLION TONNES OF AS RAISED SAND AND GRAVEL, RESTORATION TO AGRICULTURAL LAND TOGETHER WITH TEMPORARY CHANGE OF USE OF A RESIDENTIAL DWELLING TO A QUARRY OFFICE/WELFARE FACILITY STRAITGATE FARM, EXETER ROAD, OTTERY ST MARY, DEVON, EX11 1LG 
The proposal is not limited to the extraction area. No quarry ever is. The size of the proposal, the size of the red line boundary, is helpfully defined by Aggregate Industries:
The application site covers an area extending to some 42.5ha, with mineral extraction proposed to take place within 22.6ha with the remainder of the site occupied by temporary soil storage bunds, mitigation planting and site management and access areas 
The proposal requires the storage of soils and the construction of a loading area and haul road. Overburden storage and loading areas alone amount to some 7 hectares. 

We wrote to Environment Agency with our concerns about the water levels in the overburden storage areas. The Agency said the matter "will be taken into consideration". However, the very same day, the Environment Agency reiterated its ‘no objection’ position provided "subsequent permission includes several robust conditions to ensure the protection of groundwater resources and quality." There was no mention of the soil storage areas, so we wrote to the Environment Agency again: 
It is clear that Aggregate Industries would have to dig beneath the maximum water table in large areas beyond the proposed excavation boundary in order to accommodate like-on-like storage of overburden. 
The EA’s approach to protecting groundwater is outlined in its position statement: 

"Where the potential consequences of a development or activity are serious or irreversible the Environment Agency will adopt the precautionary principle to manage and protect groundwater. The Environment Agency will also apply this principle in the absence of adequate information with which to conduct an assessment." 

Do you not agree – particularly given the absence of groundwater monitoring in the proposed soil storage locations – that there has not been "adequate information with which to conduct an assessment"? 
Whilst the Environment Agency did not deny the problem, it did not agree either. This week it wrote:
Our recommended conditions concerning the Maximum Winter Water Table (MWWT) are intended to apply to the quarry working area only, not the soil/overburden storage area and the Planning Officer is aware of the intention of the recommended conditions. 
Quarry working area only? That will be news to most people. No geographic limit is defined in the condition. Groundwater needs protecting whether it is inside or outside the extraction area. 

Let's repeat the Minerals Plan again, this time from the Table C.4 referenced above: 
The development of this site will only involve dry working, above the maximum winter (wet) level of groundwater. 
Development of this site. If there was any intention by the Environment Agency to restrict the condition to just the working area, it has only been arrived at since the elevated groundwater levels in the soil storage areas were highlighted. 

Devon County Council and the Environment Agency need to send Aggregate Industries back to do more extensive groundwater monitoring. Without such information, the Council is in no position to determine the application lawfully.
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Monday, 27 September 2021

‘HS2 loses vast amounts of highly polluting clay slurry in aquifer’

Accidents happen. 

That's why a precautionary approach must always be taken when dealing with groundwater and aquifers.

HS2 has lost vast amounts of a potentially highly polluting substance in an aquifer during the construction of the high-speed rail link, it has emerged. 

Environmental campaigners have raised concerns about the impact of this on the water supply. 

The company lost 1,600 cubic metres of clay slurry known as bentonite, which is used in construction work, in the last few months of last year. 

A Network Rail environmental guide to bentonite says that as a liquid it is highly polluting. “If it enters watercourses or drains it can cause damage to plants and animals,” the guidance says.

HS2’s development partner Align has produced a report analysing the impact of this loss on the aquifer on the site where works are being carried out, north of Chalfont St Peter in Buckinghamshire. 

The lost bentonite is thought to be sitting in the fractures and fissures around the sides of the aquifer.

Align’s own report states that while no lasting damage is thought to have been done by this loss, at two monitoring boreholes there has been "significant effects on pH, turbidity and other water quality parameters"…. 

An Environment Agency spokesperson said: "We take the protection of groundwater and watercourses – including chalk streams – very seriously, as well as the protection of the wildlife and ecosystems that rely on them."

"The agency is working closely with HS2, their contractors, local community groups, the water industry, and local authorities to ensure the environment is protected throughout the project."
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Hemerdon Mine operator sets out secondary aggregates ambitions

Tungsten West – the operator of the tin and tungsten mine at Hemerdon near Plymouth, the mine "formerly known as Drakelands", and subject of previous posts – has issued an EIA Scoping Request to Devon County Council PRE/1523/2021 in connection with its proposal to increase the output of secondary aggregates.

Tungsten West has formed a subsidiary, Aggregate West. The company claims: 
4.7 For a viable operation, Aggregate West Limited’s business plan allows for incremental growth over a 5‐year period. Assuming 20 tonnes of aggregate per HGV and movements 6 days per week, this is likely to require an average number of daily exportation movements as follows:
Year 1 (2022): 150 Aggregate HGV Exportations 
Year 2 (2023): 150 Aggregate HGV Exportations 
Year 3 (2024): 200 Aggregate HGV Exportations 
Year 4 (2025): 250 Aggregate HGV Exportations 
Year 5 (2026): 300 Aggregate HGV Exportations 
Year 5+ (2027+): (To be agreed as maximum based upon assessment of highway capacity including mitigation required). 
Assuming 50 working weeks per year, the company’s ambitions are seen to grow from 900,000 to 1.8 million tonnes per annum. 

According to the supply deal announced last month with GRS, a proportion of the aggregate would be loaded onto ships at Plymouth for transportation to other ports around Britain, and onto trains at Marsh Mills for onward distribution via the rail network.  

Local residents are understandably concerned about the scale of such ambitions.
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CMA issues deadline on ending ‘greenwashing’

The UK competition watchdog has given companies that make misleading claims about their environmental credentials until the end of the year to stop the practice, which is known as "greenwashing". 

Too many businesses were "falsely taking credit for being green" in order to woo environmentally minded consumers, the Competition and Markets Authority said.
Could Aggregate Industries – UK subsidiary of Swiss cement giant Holcim – be accused of "falsely taking credit for being green"? After all, the two tweets below can’t both be correct.
 
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‘Stop knocking down buildings, top engineers urge’

The report, steered by the Royal Academy of Engineering, said a new way of thinking is needed before planning new homes, factories, roads and bridges. 

Prof Rebecca Lunn from Strathclyde University, one of the report's authors, said: "Our biggest failure is that we build buildings, then we knock them down and throw them away. We must stop doing this." 

Fellow author, Mike Cook, adjunct professor at Imperial College, challenged the government's £27bn road-building programme because of the embodied emissions created to obtain the concrete and tarmac, as well as the use of very polluting machines to construct the highways. 

Prof Cook told BBC News: "We have to radically revise the way we look at things."

Prof Cook said questions should be asked whether projects such as HS2 - with its massive embodied carbon - will really benefit future generations.
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Global sand & gravel extraction conflicts with half of UN SDGs


The 2030 Agenda for Sustainable Development, adopted by all United Nations Member States in 2015, provides a shared blueprint for peace and prosperity for people and the planet, now and into the future. At its heart are the 17 Sustainable Development Goals (SDGs), which are an urgent call for action by all countries - developed and developing - in a global partnership.
A new study – Sand, gravel, and UN Sustainable Development Goals: Conflicts, synergies, and pathways forward published recently in One Earth – concludes that global sand and gravel extraction conflicts with half of the UN Sustainable Development Goals: 
Sand and gravel are the most mined materials in the world, with between 32 and 50 billion tonnes extracted globally each year. They are being extracted faster than they can be replaced. But according to a new study led by researchers at McGill University and the University of Copenhagen, the human and environmental costs of this extraction on lower and middle-income countries have been largely overlooked. 
“With this work we’re able to show that in low- and middle-income countries, sand industry is in direct conflict with almost half of the 17 Sustainable Development Goals,” said Mette Bendixen an assistant professor in the department of Geography at McGill University and one of the lead authors of the work, which was published recently in One Earth. “The impact that sand and gravel mining have on the environment, conflicts with goals linked to the natural dynamics of ecosystems. Furthermore, pollution, health-related issues and the informal nature of many mining activities creates societal inequalities negatively affecting small scale miners and their families.”
As usual, Holcim – parent company of Aggregate Industries – has its own take on things:

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DCC issues 9th and 10th LAA

Devon County Council is tasked with producing an annual Local Aggregate Assessment which includes information on sand and gravel production and reserve levels. 

The Council's 8th LAA was published in May 2020. At the time, we posted DCC says correlation 'broken' between aggregate sales and housing completions. It confirmed the long-term decline in sand and gravel sales in Devon. Since then, sales of sand and gravel have fallen further – as shown here. Last month, we posted that Sales of sand and gravel in Devon were down 12.6% in 2020.

This week, the Council published its 9th and 10th LAAs for the years 2010-2019 and for 2011-2020 respectively. The LAA highlights the ongoing decline in sales: 
For the three years to 2020, the average sales were 2.439 million tonnes for crushed rock and 0.493 million tonnes for sand and gravel, both falling below the ten years average for the first time in recent years. 
There has also been a significant "reassessment" of mineral reserves during 2020. 

At the end of 2019, reserves of sand and gravel were 4.199 million tonnes, and reserves of crushed rock 95.378 million tonnes. In 2020, after sales of 0.437 million tonnes of sand and gravel and 2.289 million tonnes of crushed rock, reserves had fallen to 2.880 and 81.323 million tonnes respectively – a loss in reserves of 0.9 million tonnes and 11.8 million tonnes in excess of sales. 

How careless. The LAA says: 
This can be attributed to a reassessment of reserves by operators. 
In other words, operators had overestimated the available resource, even misrepresenting the benefit at the time of applying for planning permission – something Aggregate Industries has made a habit. 

What about more sustainable sources of aggregates? The most recent LAA tells us that "despite the pandemic, sales of secondary aggregates increased by 2% in 2020 from the previous year": 
In addition to the existing sources of secondary aggregates outlined above, [there are] other potential sources that may be available in the future. This includes secondary aggregates from the processing of waste from tungsten and tin extraction at Drakelands Mine, near Plymouth, which commenced extraction in summer 2015 but ceased in autumn 2018. A new owner is looking to recommence operations at the site shortly.
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‘The ESG investing industry is dangerous’

Tariq Fancy – previously chief investment officer for sustainable investing at BlackRock – has written an essay on environmental, social and corporate governance: The Secret Diary of a ‘Sustainable Investor’ — Part 1:
This is the first of a three-part essay that shares how my thinking evolved from evangelizing ‘sustainable investing’ for the world’s largest investment firm to decrying it as a dangerous placebo that harms the public interest. It’s not short. But this topic is critically important: it lies at the heart of how we reform capitalism to address important environmental and social challenges with concrete action. I challenge business leaders who have advocated the ideas I question below to offer a serious rebuttal. 
The essay has been picked up by the FT. 


Tariq Fancy is quoted as saying: 
In my role at BlackRock, I was helping to popularise an idea that the answer to a sustainable future runs through ESG and sustainability and green products, or in other words, that the answer to the market’s failure to serve the long-term public interest is, of course, more market. A bit like the NRA’s traditional answer to mass shootings and related concerns around public safety — the answer is more guns. 
He says senior executives at Blackrock are too smart to believe their own claims about ESG: 
They must know that they’re exaggerating the degree of overlap between purpose and profit . . . These leaders must know that there is no way the set of ideas they’ve proposed are even close to being up to the challenge of solving the runaway long-term problems . . . And right now all of the other stuff they’re saying — the marketing gobbledegook — is actively misleading people. 
Tariq Fancy lays out a number of arguments. Here, quoted from the FT article, are three: 
Argument five. Giving people the dumb idea that shifting their savings from one investment fund to another is going to help materially with, say, climate change creates a dangerous distraction from solutions that fit the scale of the problem, all of which involve changing the rules of capitalism through regulation. 
Argument eight. Corporations, and the whole legal and social apparatus in which they sit, were built around the idea that companies exist to maximise shareholder wealth. That’s what they are designed to do and are required to do. Thinking that fiddling around in the financial markets is going to make companies fit for a radically different purpose — helping with broad social problems driven by economic externalities and tricky collective action problems — is simply bonkers.  
Argument nine. Do you really want financial industry bigwigs making choices about how to solve our biggest social problems? Fancy quotes one of the signatories to the hilariously empty and meaningless 2019 Business Roundtable statement on the purpose of the corporation: “There were times that I felt like Thomas Jefferson.” So said Johnson & Johnson CEO Alex Gorsky, who led the drafting of the BRT’s groundbreaking statement on stakeholder value. It’s easy to understand why he felt that way, given the weight of such lofty words about the future direction of not just business, but indeed society in general. But not enough people have asked a simple question: does it make sense that a CEO should feel like a famous US president? Only one of them is elected by the people.   
The author of the FT article finishes by saying: 
I myself find argument five particularly important. From what I understand, it’s clear we need, for example, a whopping big carbon tax, and soon, or we’re cooked. But we have some of the smartest, most powerful people in the corporate world rattling on about this sustainable investing drivel instead. It scares me.
 It should scare us all. Holcim – parent of Aggregate Industries – emits more CO2 than many countries:

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‘Aggregate Industries hikes franchised driver pay rates in face of skills crisis’


Earlier this month, Motortransport.co.uk reported: 
The construction materials sector is hiking franchised driver rates as the driver shortage crisis continues. Breedon Group, Aggregate Industries and Tarmac have boosted their pay in the past few weeks, MT has learnt. The rate rises come as the haulage sector continues to struggle to attract and retain HGV drivers in the face of the widespread UK driver shortage.
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Friday, 24 September 2021

AI’s proposal would PERMANENTLY alter the landscape – so why has the flood risk assessment only assumed a 10-12 year lifespan and 10% climate change uplift?

Aggregate Industries’ Flood Risk Assessment says: 
The development lifespan will be 10 to 12 years, so it is proposed that an allowance for a 10% increase in extreme rainfall is considered, according to NPPF guidance on climate change which states that an allowance of 10% is made for development with a lifetime extending to 2039 respectively;  
The change to the landform would not, however, be for just 10 to 12 years – it would be FOREVER. 

In our response in 2017, we wrote: 
114. The applicant has used an uplift of +10% in its runoff calculations to reflect climate change. However, since this proposal would result in a permanent change upon the landscape this uplift is inadequate. The EA forecasts peak rainfall intensity increasing by 20% in 2055-2085 and 30% in 2085-2115. 
We pointed to the LLFA’s response to Aggregate Industries’ ROMP application for Hillhead, which said: 
Following the publication of the Flood Risk Assessments: Climate Change Allowances document (dated 19th February 2016) by central government, the applicant will be required to use a climate change uplift value of 40% when sizing the proposed surface water drainage management system for this development.
40%, not 10%. 

In May this year, Devon County Council's Flood Risk Team, in its role as Lead Local Flood Authority, objected to Aggregate Industries' proposal, but was comfortable with what it understood to be the allowance for climate change: 
In terms of the concerns relating to climate change, the applicant has proposed a surface water management strategy which includes an allowance of 40% for climate change in terms of rainfall within the attenuation calculations. This is inline with the most up to date guidance from the Environment Agency: Flood Risk Assessments - Climate Change Allowances (July 2020).
Which would be brilliant – if 40% were true. The LLFA had either misread, or not read, Aggregate Industries' FRA. We wrote to the LLFA pointing out the discrepancy in their understanding.

Nevertheless, the LLFA has since withdrawn its objection, obviously still comfortable with the uplift for climate change even though it is only 10%. The statutory consultee pointed to the access road and holding area, and to national policy:  
The applicant has provided calculations to indicate that the proposed surface water drainage system for the access road and holding area has been designed to manage the 1 in 100 year event plus climate change which is in line with local and national policy.
Indeed, the access road and holding area may have a more limited lifetime, for which drainage calculations may be in line with national policy, but what about the 56 or more acres that would be permanently changed?

National policy considers the lifetime of development in terms of flood risk, and says: 
The lifetime of a non-residential development depends on the characteristics of that development. Planners should use their experience within their locality to assess how long they anticipate the development being present for. Developers would be expected to justify why they have adopted a given lifetime for the development, for example, when they are preparing a site-specific flood risk assessment. The impact of climate change needs to be taken into account in a realistic way and developers, the local planning authority and Environment Agency should discuss and agree what allowances are acceptable. Paragraph: 026 Reference ID: 7-026-20140306 
National policy also says: 


Indeed, for Aggregate Industries' proposal to construct an asphalt plant at Hillhead, the LLFA specified: 
MicroDrainage model outputs will be required to demonstrate that the proposed surface water drainage system is designed to the 1 in 100 year (+40% allowance for climate change) rainfall event. 
So why – when a 40% uplift was required at Hillhead for both the quarry and the asphalt plant, and when flooding has been acknowledged as such an important issue for communities downstream of Straitgate Farm – did the LLFA in all its flooding wisdom think that a 10% allowance for climate change would be acceptable, for a development that would not only leave a PERMANENT scar on the landscape, but would also PERMANENTLY change the way surface water runs off the site?

Has the LLFA not seen the news this year, the death and destruction that can happen when 150 mm of rain falls in 24 hours?
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Thursday, 23 September 2021

After saying no more extensions – DCC agrees another extension for AI

Devon County Council – who in October 2020 said it would not be requesting a further extension of time beyond the end of 2020 to determine Aggregate Industries’ planning application to quarry Straitgate Farm – today issued a further extension of time to Aggregate Industries to allow just that, this time until the end of November 2021. 

Determination of the application is therefore expected to be on 20 October, given that there are no Development Management Committee meetings scheduled for November.
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Wednesday, 22 September 2021

Has DCC forgotten its Scoping Opinion?


Devon County Council said the Scoping Opinion was:
...a formal opinion as to the information that the applicant will need to include in the Environmental Statement to accompany the planning application for the proposal described above PRE/0953/2015. 
Given the LLFA's recent response, let’s remind ourselves what the Scoping Opinion said on flood risk:
 

In brief, emphasis added, the Scoping Opinion told Aggregate Industries that "as a minimum" it should – amongst other things – demonstrate that "it will be feasible to balance surface-water runoff to the greenfield rate for all events up to the 1 in 100 year storm plus an allowance of 30% for climate change"; that "Where SuDS are proposed, it must be demonstrated that they are feasible..."; that a site plan should show "exceedance flow paths". 

Pretty normal stuff. But obviously not for Aggregate Industries, who has so far been unable to show that its surface water management plans are feasible. 

Despite that, the LLFA has withdrawn its previous objection, on the basis that a pre-commencement planning condition is imposed: 
The conditions should be pre-commencement since it is essential that the proposed surface water drainage system is shown to be feasible... 
Amazingly, the proposed condition – to be resolved after determination, when 6 years have not been enough to resolve matters before determination – shows that the LLFA has not even seen "a plan indicating how exceedance flows will be safely managed at the site." Clearly, without such a plan – and a raft of other information too – Aggregate Industries has NOT demonstrated either feasibility or the safe management of flood risk. 

Has Devon County Council forgotten its Scoping Opinion, and its request that there should be "proper consideration of all of the likely effects of the project"? 

Has Devon County Council forgotten Regulation 18(4)(b) of The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 that says "An environmental statement must... include the information reasonably required for reaching a reasoned conclusion on the significant effects of the development on the environment..."?
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Monday, 20 September 2021

EIA, planning conditions, and the law


When the planning application to quarry Straitgate Farm is determined, it will be accompanied by a raft of proposed conditions – conditions that, in the case of flood risk, would attempt to sort out after determination what Aggregate Industries and Devon County Council have failed to resolve over the past 6 years before determination, conditions that would negate any further public scrutiny.

As previously posted, the Council's Flood Risk Team, in its role as Lead Local Flood Authority, has withdrawn its objection to Aggregate Industries’ proposal on the proviso that a pre-commencement planning condition (sometimes referred to as a 'Grampian' condition) is imposed – a condition that would amongst other things include procuring a design for how surface water would be managed on the restored site i.e. in perpetuity. 


What is clear is that the LLFA does not know whether a scheme to control flooding – whilst maintaining stream flows, whilst maintaining groundwater recharge for drinking water supplies, whilst avoiding the creation of permanent bodies of water and an airport safeguarding hazard – would even be feasible: 
The conditions should be pre-commencement since it is essential that the proposed surface water drainage system is shown to be feasible
Nevertheless, the LLFA has clearly decided that it wants no further public involvement in the matter, and that the significant, thorny and as yet unresolvable issue of flood risk management should be sorted out behind closed doors at some future date. 

However, reliance by the Local Planning Authority on the LLFA’s recommendation would not only be reckless, considering the number of problems local people have already highlighted, but according to legal advice would also be unlawful. 

Let’s look behind that advice. 

Aggregate Industries’ planning application has been the subject of Environmental Impact Assessment. According to government planning guidance: 
The aim of Environmental Impact Assessment is to protect the environment by ensuring that a local planning authority when deciding whether to grant planning permission for a project, which is likely to have significant effects on the environment, does so in the full knowledge of the likely significant effects, and takes this into account in the decision making process... The aim of Environmental Impact Assessment is also to ensure that the public are given early and effective opportunities to participate in the decision making procedures. Paragraph: 002 Reference ID: 4-002-20140306
Why is that important? The EIA contains the applicant's own assessment of the environmental impact of the proposal, which may be – and definitely has been in Aggregate Industries’ case – inaccurate, inadequate or incomplete. According to R (Blewett) v Derbyshire CC [2004] the EIA regulations: 
...recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting ‘environmental information’ provides the local planning authority with as full a picture as possible. 
If the LPA considers that further information is required, planning guidance says: 
...they must ask the applicant, in writing, to provide it (regulation 25). All information provided must be publicised, and consulted on. Paragraph: 047 Reference ID: 4-047-20170728
The legal advice we have received points to the recent case of R (Swire) v Secretary of State for Housing, Communities and Local Government [2020] which itself draws on other cases. Here are three paragraphs from that case: 
...the underlying purpose of the Regulations in implementing the [EIA] Directive is that the potentially significant impacts of a development are described together with a description of the measures envisaged to prevent, reduce and, where possible, offset any significant adverse effects on the environment. Thus the public is engaged in the process of assessing the efficacy of any mitigation measures... 70
...it was not right to approach the matter on the basis that the significant adverse effects could be rendered insignificant if suitable conditions were imposed. The proper approach was to say that potentially this is a development which has significant adverse environmental implications: what are the measures which should be included in order to reduce or offset those adverse effects? 70
...It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. 78
Of course, it’s not just the public that should be "engaged in the process of assessing the efficacy of any mitigation measures." Such a condition also deprives councillors on the planning committee of the opportunity to assess mitigation measures. In R (Jones) v Mansfield District Council [2003]: 
The purpose of the Regulations was to allow an opportunity to debate the environmental impact of a proposal so that full account of both the impact and the proposed mitigation could be taken into account in the eventual decision. 
It’s common sense. The LLFA’s condition plainly indicates the Council is without significant information to enable it to make an informed decision about surface water management. In R (Jones) v Mansfield District Council [2003]: 
Without the results of the surveys, they were not in a position to know whether they had the full environmental information.
In the case of Aggregate Industries’ proposal, for example, the LLFA has conditioned that "Soakaway testing must be undertaken... in accordance with BRE 365." Aggregate Industries has already had a go at soakaway tests. What happened? The results were inconclusive, several tests "were not undertaken due to slow infiltration rates." For each one of the six test pits: 
TP1 Unable to calculate infiltration rate 
TP2 Unable to calculate infiltration rate 
TP3 Unable to calculate infiltration rate 
TP4 Unable to calculate infiltration rate 
TP5 Unable to calculate infiltration rate 
TP6 Unable to calculate infiltration rate 
Aggregate Industries' document admits: 
The soakaway tests did not allow an infiltration rate to be determined using the BRE approach...
But there’s another reason why the Council cannot leave something as significant as flood mitigation to be resolved by condition, post determination. A planning application can either be allowed, allowed with conditions or dismissed. There is no power to modify an application other than by condition, but the Planning Inspectors’ Handbook makes clear that:
...care should be taken that a condition does not substantially alter the nature of the development applied for. In the case of Wheatcroft v SSE [1982] JPL p37 the judge formulated a test to define what a "substantial alteration" is. If the change is such that third parties would be likely to want to comment on it then the condition should not be imposed, as to do so would deprive those people of the opportunity for comment. 
Clearly, if the LLFA has no idea whether a surface water management scheme is even feasible, then the proposed condition could obviously throw up a requirement for significant alterations. Since a quarry at Straitgate Farm would permanently alter the landscape, and thereby surface water drainage characteristics, stakeholders should of course be entitled to comment on alterations – particularly if such alterations had the capacity to impact third party land beyond the site for evermore. 

Why would Devon County Council think otherwise, other than to stitch the whole thing up?
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Thursday, 16 September 2021

Legal advice on LLFA decision

Legal advice has been sought on the decision by Devon County Council's Flood Risk Team, in its role as Lead Local Flood Authority, to withdraw its objection to Aggregate Industries’ proposal to quarry Straitgate Farm, providing that a "pre-commencement planning condition is imposed."

As we have previously posted, the LLFA is clearly not in possession of sufficient information to know whether flood risks can be adequately managed or whether a proposed surface water drainage system is even "feasible". The LLFA’s proposed condition shows that the statutory consultee is not even in possession of "a plan indicating how exceedance flows will be safely managed at the site." 

According to the legal advice: 
The Local Planning Authority's legal duty to assess the environmental impact of a scheme cannot be contingent on future mitigation, if that mitigation is not informed by sufficient information at the time the decision is made on the planning application. This issue was recently considered by the Court in R. (on the application of Swire) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 1298 (Admin). In Swire, the Court said the following (emphasis added): 

"106 …because of the lack of expert evidence, the defendant [the LPA] was simply not in a position to make an “informed judgment”... It follows that when the defendant concluded that “he was satisfied that the proposed measures would satisfactorily safeguard and address potential problems of contamination” and that “the proposed measures would safeguard the health of prospective residents of the development”, he was making an assumption that any measures proposed under condition 21 would be successful, without sufficient information to support that assumption. 

107. Mr Honey relied upon the advice given to the defendant by the Environment Agency, which advised that conditions requiring risk assessment and remediation proposals would be sufficient to mitigate against potential adverse impact on the groundwater. The Environment Agency previously advised the Council that without conditions “the proposed development poses an unacceptable risk to the environment”. I do not consider that the advice from the Environment Agency justified the approach adopted by the defendant. It confirmed the view of the Environmental Health Practitioner and the Council that further investigation and assessment was needed. It did not provide the defendant with any evidence that there was no risk of adverse environmental impacts, nor that mitigating measures had as yet been identified which would satisfactorily overcome any such risk." 

Furthermore, the Court has made it clear on several occasions that a Grampian condition cannot be used as a means for 'kicking into the long grass' an issue which should be fully addressed at the time the application is determined. It is clear from the LPA's handling of the application (and Policy M24 of the Devon Minerals Plan) that the management of flood risk from the development is of crucial importance. Accordingly, it would be unlawful for the LPA to rely on subsequent consideration of this issue under a Grampian condition as justification for approving the permission, as that is not the purpose of Grampian conditions. Instead, Grampian conditions should only be used when there is a realistic prospect that their requirements will be met so that the development can proceed. It would appear that is not the position here, as the fundamental issue of flood risk management is not being considered in full prior to determination of the application and, as such, the LPA cannot lawfully conclude that the development would be acceptable with the proposed Grampian condition.
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Wednesday, 15 September 2021

Does the LLFA actually understand what’s proposed?

If Aggregate Industries has been unable to produce a workable coherent flood mitigation scheme in SIX YEARS, why does Devon County Council's Flood Risk Team – in its role as Lead Local Flood Authority – think it’s a good idea to sort it all out post determination, other than to avoid further public scrutiny? 

The LLFA has now withdrawn its previous objection, subject to a range of conditions being imposed – including the approval of "a plan indicating how exceedance flows will be safely managed." But how well does the the LLFA actually understand what’s proposed? 

Let’s take just two examples from the LLFA’s response. 

One: The LLFA observes that: 
The haul road will be stripped of soils before coming into use which will enable infiltration directly into the Pebble Beds and avoid the risk of soil compaction. 
Fantastic. The problem? Aggregate Industries' Supporting Statement says: 
3.1.3 An internal haul road will be constructed to link the mineral stockpiling area to the access point on Birdcage Lane. This haul road would be asphalt surfaced from the proposed wheelwash to the junction at Birdcage Lane to ensure that no mud will be deposited on the public highway.
So, "asphalt" or "Pebble Beds"? 

Two: The LLFA will no doubt have put much thought into the proposed conditions. One of them reads:
(c) The applicant should commit to re-working the base of the void to a depth of 1 m as well as the removal of any silt accumulation to ensure the base is fully functionable for infiltration purposes. 
At first glance, another sensible idea. The problem? The void created by any quarrying at Straitgate would be defined by the maximum water table. The Environment Agency has stipulated:
No working shall be undertaken below the ‘Maximum Winter Water Table'
So what on earth is "re-working the base of the void to a depth of 1 m" all about?
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